For a Diverse and Plural Millenium
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Inclusion, not Tolerance: Challenges, Difficulties and Omissions in Sexual Rights Claims and Respect for Sexual Diversity as Human Rights

Ana Irma Rivera Lassén

In the context of preparations for the Forum of the Americas held in Quito, Ecuador, we considered a number of questions, proposals and challenges we would face in drafting a Plan of Action that would be inclusive of sexual diversity. The Forum, as a preparatory event towards South Africa, placed us in the symbolic meeting point of countries which had recognized in their constitutions the prohibition of discrimination on the grounds of sexual orientation. Both countries also face the challenge of turning what the Constitution says into a reality. The challenge to recognize and turn the prohibition of discrimination due to sexual orientation into concrete rights is still pending. An example would be the full recognition of marriage rights of couples composed by people of the same sex.

The present article deals with the issue of "intolerance" and sexual diversity. For that purpose, we will first need to question the concept of intolerance. Many of us think it would be better to use phrases such as lack of respect or lack of acceptance; the term discrimination can also be used. To tolerate is not the same as to respect or accept. It is like saying, I can put up with you, but not necessarily accept your existence. The concept of intolerance, in the sense of non acceptance, is precisely what provokes actions of hatred aimed at the homosexual, lesbian, bisexual and transgender (GLBT) community.

The document "Ha pasado ya el tiempo llamado de la tolerancia", by the International Gay and Lesbian Human Rights Commission, written as part of the Latin American and Caribbean regional evaluation process for Beijing +5, in referring to countries that penalize sexual relations between people of the same sex, stated the following:

Countries that have this type of laws are transmitting a clear message of intolerance towards all forms of sexuality that differ from heterosexual relations with reproductive purposes. This legalized intolerance promotes the perpetration of violent acts against people who practice those other forms of sexuality and guarantees impunity for perpetrators. The existence of such laws also severely inhibits the organizing possibilities of so-called sexual minorities, by reducing them to the category of "criminals".¹

We have seen that many analyses of progress and challenges of the GLBT community on Human Rights issues written in the past years use the context of World Conferences and United Nations (UN) documents, conventions and declarations. Some of these are the Universal Declaration of Human Rights, the International Covenant of Economic, Social and Cultural Rights, the International Covenant of Civil and Political Rights, the Convention on the Elimination of all Forms of Discrimination Against Women, the UN Convention on Refugees and other instruments. In addition, in our region, the inter American system has, for example, the Inter American Convention of Human Rights and the Inter American Convention to Prevent, Sanction and Eradicate Violence Against Women.

This is so since the major advances have been achieved in the acknowledgement of violence against women and gender violence as a violation of human rights. I will not analyze here the historical landmarks at which feminist struggles and those of the GLBT community have converged or have separated. But I do want to emphasize that the issue of sexual and reproductive rights undoubtedly unite both struggles.

Although we wish we could separate human reproduction from the exercise of sexuality, the truth is that in order to do so, we must talk about both. We must understand both in order to be able to separate them. Certainly, some progress has been made. We still have much work to do in order to visibilize the issue of sexual orientation in terms of sexual rights (as well as of reproductive rights). But, in general, there has been progress. The same report of the International Gay and Lesbian Human Rights Commission states:

Patient (or sometimes, not so patient) and dedicated work of organized lesbians in the region (and of gays too) has achieved a virtually generalized consensus on the recognition that discrimination on the grounds of sexual orientation is a human rights issue. This idea, which may seem obvious for many people, was not so barely 15 or 20 years ago (and still isn't in many parts of the world). Practically every activist with a longer period of activism can remember the empty space that surrounded gay and lesbian groups in human rights marches, or the explicit rejection of many prestigious organizations to take on cases of discrimination due to sexual orientation.²

Further on, it also says:

Interpretations in international conventions that are inclusive of sexual orientation but do not mention it explicitly (all of them) are no longer patrimony of activists only, who were the ones to initiate this practice. In various cases, the UN Human Rights Commission, the Inter American Commission of Human Rights and other organisms [...] have interpreted the right to respect of private life, discrimination based on sex or diffused categories such as "other condition or status" as inclusive of sexual orientation.³

However, there is still much to do before our region or the world is rose or violet color. The concept of intolerance (non acceptance) is the basis for violations of human rights of the LGBT community. To offer an example, a Puerto Rican legislator during a public hearing in which the possibility of recognition of same-sex couples was being discussed, said: "we've been tolerant enough to allow gays and lesbians and even transvestites to come here without arresting them." This summarizes and is the main issue that brings us here. We are searching for and demanding institutional answers to the protection and recognition of the human rights of the GLBT community.

In the framework of the Forum of the Americas we intended to keep moving forward. For that purpose, it was necessary to use a methodology that would allow us to make intersections with the gender perspective, in order to better appreciate the various or multiple ways in which racism, racial discrimination, xenophobia and other forms related to the lack of acceptance of diversity affect people of the GLBT community.

The Convention on the Elimination of All Forms of Racial Discrimination (CERD), as well as the other conventions I mentioned previously, must be seen in relation to one another. Racism, xenophobia or intolerance (lack of acceptance) an individual of the GLBT community may be subject to, violates his/her civil, political, economic, social and cultural rights; it violates his/her human rights.

The non recognition of sexual diversity, as well as the defense of heterosexist privileges, in the various countries, allows the existence of different categories of human rights based on sexual orientation. Paramilitary groups, death squads or hate groups will act with impunity, attacking and/or killing people because they are poor, homeless, sex workers, gay or lesbian.

Attacks on personal safety are added to attacks to freedom of movement, to the non recognition of equal legal treatment or protection; there is no protection or recognition of the right to privacy or to participate freely in public or political life. There is no protection against discrimination based on sexual orientation in employment; partnerships are not recognized, nor are partnership rights; medical or any other type of benefits are not made extensive to same-sex partners as they are to heterosexual families. There is no right to education free of stereotypes based on sexual orientation.

Sometimes there is no right to organizing to struggle for rights, since exposing themselves publicly may mean loss of jobs, families, children, housing, peace and physical safety. Not to mention all the pressures on psychological health represented by social pressures, rejection and "intolerance".

The Preamble of the final governmental declaration of the Conference Against Racism held in December 2000 in Chile, says that it affirms its "commitment to tackle the expressions of racism, racial discrimination, xenophobia and other forms of intolerance that occur on the grounds of race, language, color, religion, culture, language and national or ethnic origin, aggravated by age, gender, sexual orientation, disability and economic status."⁴ That is, sexual orientation was included as a factor aggravating other forms of discrimination. In that sense, we will see that the document uses a sufficiently broad language to include sexual orientation, even where it does not expressly mention it. In the section of victims of aggravated or multiple discrimination, we observe that it says:

We recognize that certain people or groups may experience other forms of discrimination based on their gender, age, disability, genetic condition, language, religion, sexual orientation, economic status or social origin, and who may additionally experience acts of racism, racial discrimination, xenophobia and related forms of intolerance. We stress that this situation may affect individuals, victims of multiple forms of discrimination, and we emphasize that special attention must be paid to the elaboration of political strategies and programs for those individuals who may suffer multiple forms of discrimination.⁵

The document maintains the concept of "vulnerable groups" to refer to groups with new privileges in society. Although we will not discuss here the convenience or not of using or not a different term to denominate individuals referred to as "vulnerable", we must note that this category includes people infected or affected by HIV/AIDS and how the racial factor and poverty influence the accessibility to medicine and medical care. The need for States to consider special measures is reiterated "to protect, as the declaration expresses, specially vulnerable individuals and groups who may experience multiple forms of discrimination on the grounds of gender, age, national origin, sexual orientation, economic status or social position, physical or mental disability, health status, religious belief or any other condition subject to discrimination, including racial discrimination."⁶ Likewise, it reiterates that States and the international community must recognize the increased margination due to age, gender, sexual orientation, etc. experienced by some victims of racism, xenophobia, etc.

In the document, States are also urged to grant priority to the promotion and protection of the full enjoyment by women and men and under equal conditions, of all human rights and fundamental freedoms, without distinction based on race, color, gender, sexual orientation, etc. I believe that this document reflects the intense lobbying by Non Governmental Organizations (NGO's) in the past conference in Chile.

The road towards South Africa will be difficult. Reviewing some documents, we observe that in the NGO meeting in Dakar, Senegal, the Declaration of the Forum mentioned sexual orientation only in the context of individuals with HIV/AIDS. The Governmental document until that time (March 2001) did not mention sexual orientation. The working document of the meeting on intersections held in Geneva (March 2001) was still under discussion when the work of the Forum of the Americas was beginning, but it already included some language from the Santiago Declaration on sexual orientation.

As we were saying at the beginning of this article, when we presented this paper, we expected that the Forum of the Americas would produce a Plan of Action and Follow-up that would reflect the gains and move forward; and it was so. However, an analysis of the results must be the subject for another article. The work of making intersections with a gender perspective among the various human rights documents and conventions played a key role for that purpose.

Notes: